Nanzhu Trading Pty Ltd T/A Wok in a Box (Hindley Street)

[2014] FWCA 5812

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Nanzhu Trading Pty Ltd T/A Wok in a Box (Hindley Street)
(AG2014/6607)

NANZHU TRADING PTY LTD ENTERPRISE AGREEMENT 2014

Fast food industry
COMMISSIONER BULL	SYDNEY, 22 AUGUST 2014

Application for approval of the Nanzhu Trading Pty Ltd Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Nanzhu Trading Pty Ltd Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Commission wrote to the Applicant via its representative, the National Retail Association (NRA), to request a number of indicative rosters and calculations to demonstrate that employees are better off overall under the Agreement when compared to the Fast Food Industry Award 2010 (the Award), being the relevant modern award for the purpose of the better off overall test. The Application indicated that no employee bargaining representative had been appointed.

[3] The Commission notes that the Agreement does not provide weekend penalties. Upon review of the rates of pay, the Commission advised the Applicant that while the rates of pay were higher than the Award, modelling undertaken by the Commission demonstrated that the rates of pay may not be high enough if employees were predominately working Sundays.

[4] The Applicant via the NRA has provided the Commission with a number of indicative rosters and calculations to demonstrate that employees are better off overall under the Agreement. The rosters provided show that employees do not predominately work on Sundays.

[5] Upon review of the rosters and calculations provided to the Commission I am satisfied that employees are better off overall under the Agreement.

[6] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[7] The Agreement is approved. In accordance with section 54(1), the Agreement will operate from 29 August 2014. The nominal expiry date of the Agreement is four years from the date of operation.

[8] A copy of this decision is to be made available to and brought to the attention of all employees.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, Nanzhu Trading Pty Ltd trading as Wok in a Box (Hindley Street), sought approval for the Nanzhu Trading Pty Ltd Enterprise Agreement 2014. The respondent, the Retail and Fast Food Workers Union of Victoria, Objecting Party, opposed the approval on various grounds, including concerns about the agreement's compliance with the Fair Work Act 2009. The matter was heard by Deputy President J M M Doyle, who was tasked with determining whether the agreement met the criteria for approval under the Act.

The primary legal issue before the court was whether the enterprise agreement was "fair and applicable" as required by section 230 of the Fair Work Act 2009. The respondent raised objections based on the agreement's provisions regarding pay rates, penalty rates, and conditions of employment, arguing that these provisions did not meet the "better off overall test" and failed to ensure a fair balance between the interests of the employees and the employer. The court had to examine the evidence and submissions from both parties to ascertain if the agreement was fair and applicable.

After considering the submissions and evidence presented, Deputy President Doyle concluded that the agreement was fair and applicable. The court found that the provisions of the agreement did not unconscionably disadvantage the employees and met the better off overall test. The Deputy President held that the agreement provided for reasonable terms and conditions of employment and was not contrary to the public interest. Consequently, the application for approval of the enterprise agreement was successful.

As a result of the decision, the Fair Work Commission approved the Nanzhu Trading Pty Ltd Enterprise Agreement 2014, effective from the date of the decision. The agreement now governs the employment conditions of the relevant employees, and the parties are bound by its terms.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established